Crane on Law by James Crane

I could go many different directions with a headline about the costs of e-discovery. I could discuss cost-saving techniques, like I did here (http://www.altep.com/content/view/3/52/). I could explain how you often “get what you pay for” … you know there’s a reason why that vendor charges 50% less than all of the competitors…

However, the focus today is just to break down the basic categories of cost associated with executing the e-discovery part of a case.

The first cost consideration is determining how much of the data collection can or should be conducted by in-house personnel versus a third-party provider. In-house will arguably cost less, (at least in the moment*), but an outside firm provides credibility as a non-party. While forensic collections can be very expensive, they are rarely necessary if the electronically stored information (ESI) is otherwise properly preserved. In a non-forensic collection, the cost to identify, locate, and collect the ESI is reasonable.

The second cost is the ESI processing. The old paradigm was to collect everything, process everything, and then review. The new and improved paradigm is to carefully identify what needs to be collected, put the native files in a database and review them with a true-native review tool, and then process only what is to be produced.

The third cost is, of course, reviewing the documents for relevance, privilege, proprietary information, and other issues. This cost will vary based on how effectively the document population has been narrowed with searching and culling, as well as the review protocol. One innovative way that some corporations involved in serial litigation are lowering and controlling their costs is by using a specialized team of attorney reviewers that are dedicated to specific matters, are trained specialists in using sophisticated review tools, and are employed by a third-party specialty firm at a drastically lower rate than in-house lawyers or outside counsel.

The fourth cost is producing the data to the opposing party. The hope of the amended Rules is that the format of production will be agreed to very early in the process, at the Meet and Confer, and that, as a result, there will be few costly surprises. The variety of production types is only limited by the imagination of the parties and if the parties can agree, the costs can be kept very low. Realistically, courts will support the efforts of parties to keep the costs of e-discovery down - practically any standard to which the parties can agree would likely be accepted. In the future, we may do away with imaged productions altogher, since it is both possible and cost-effective to produce files in their native format. If both parties used a native review platform, all of the pre-production and post-production review could be done without paper and without expensive imaging. That is something to think about.

* For a more detailed discussion of the high cost of maintaining in-house e-discovery, go here: http://www.altep.com/content/view/4/52/.